Court File and Parties

COURT FILE NO.: CV-14-512354 DATE: 2018-11-08

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: KEN STREET, Plaintiff AND: TORONTO POLICE SERVICES BOARD, CONSTABLE MATTHEW ELLIS and CONSTABLE DAVID PURVIS, Defendants

BEFORE: Madam Justice V.R. Chiappetta

COUNSEL: Ken Street, for himself Douglas O. Smith and John Hunter, for the Defendants

HEARD: In Writing

Endorsement

[1] This action arises out of the arrest of the Plaintiff on June 10, 2010 on charges of assault, assault with a weapon and assault with intent to resist arrest. The individual police officers named as Defendants were alleged to have committed gratuitous assault upon the Plaintiff while he was in their custody, having conspired with the management of the co-op building in which he lives. For reasons released July 12, 2018, I dismissed the Plaintiff’s claim in its entirety (Street v Toronto Police Services Board, 2018 ONSC 4290). The Defendant’s now seek their costs on a partial indemnity scale in the amount of $77,906.58.

[2] I have reviewed the costs outline certified on August 13, 2018 by the lawyers for the Defendants. I find the hourly rates charged to be reasonable considering the experience of the lawyers involved in this matter. Further, I find the time expended to be reasonable considering that this is a civil action of almost 6 years that required two pre-trials in advance of a 7-day trial.

[3] With reference to the factors set out in subrule 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the plaintiff sought a significant monetary award ($500K) involving complex issues not limited to excessive force, negligent investigation and breach of Charter rights such that the use of more than 1 defence lawyer is reasonably expected. The issues were of significant importance to both parties. Mr. Street alleged that he was a victim of a conspiracy between the police and the management of the co-op in which he lives. The allegations as against the police officers, if proven in court, would have resulted in detrimental consequences to both their professional and personal lives. I am mindful of this when considering what is a fair and reasonable exercise of my discretion pursuant to section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. 43. I am also mindful of the Plaintiff’s oral testimony at trial that he is working part-time and remains dependent on disability support payments. The only documentary evidence before the court in terms of the Plaintiff’s income, however, was his 2009 income tax return. I have nonetheless considered his ability to pay.

[4] The Plaintiff represented himself at trial. Access to justice ought to be properly promoted in our courts. Balancing these factors and considerations, in my view it is fair to reduce the Defendants’ otherwise reasonable amount sought for costs. Ultimately the Defendants were entirely successful on a complex matter that carried significant consequence to the individual Defendants named. Costs are fixed therefore at $50K inclusive and payable within 60 days by the Plaintiff to the Defendants.

V.R. Chiappetta J.

Date: November 8, 2018